On February 16, 2017, the U.S. Court of Appeals for the Eleventh Circuit struck down certain parts of Florida’s Firearms Owners’ Privacy Act (“FOPA”), which imposed content-based restrictions on the free speech of medical professionals such as limiting inquiries about the presence of guns in a patient’s home. On the other hand, the court upheld the anti-discrimination provision that precludes discrimination against patients based solely upon the exercise of the constitutional right to own and possess firearms or ammunition.

The Firearms Owners’ Privacy Act, Chapter 2011-112, Laws of Florida, was enacted in 2011, creating section 790.338 and amending sections 381.026 and 456.072 of the Florida Statutes. One purpose of FOPA was to require health care practitioners and facilities to respect a patient’s privacy concerning the exercise of the Second Amendment right to own or possess a firearm.

For example, the Act prohibited doctors and healthcare facilities from “making a written inquiry or asking questions concerning the ownership of a firearm or ammunition by the patient or by a family member of the patient, or the presence of a firearm in a private home or other domicile of the patient or a family member of the patient.” § 790.338(2), Fla. Stat. (the record-keeping and inquiry provisions). The law made an exception, however, allowing such written or verbal inquiry where “a health care practitioner or health care facility … in good faith believes that this information is relevant to the patient’s medical care or safety, or the safety of others.” § 790.338(2), (6), Fla. Stat.

Another purpose of FOPA was to preclude medical professionals and facilities from discriminating against a patient “based solely upon the patient’s exercise of the constitutional right to own and possess firearms or ammunition,” or “unnecessarily harassing a patient about firearm ownership during an examination.” § 790.338(5), (6), Fla. Stat. (the anti-discrimination and anti-harassment provisions).

FOPA provided for disciplinary sanctions against medical professionals and facilities violating the Act. § 790.338(8), Fla. Stat. Soon after FOPA was enacted, various doctors and medical organizations filed suit in federal court to challenge parts of the Act as unconstitutional.

In June 2012, the federal district court in Wollschlaeger v. Farmer permanently enjoined enforcement of FOPA’s record-keeping, inquiry, anti-discrimination, and anti-harassment provisions, holding that they were invalid under the First Amendment and were not the least-restrictive means to accomplish the State’s objectives.

The State of Florida appealed to the Eleventh Circuit, where the three-judge panel wrote three separate opinions upholding FOPA as constitutional in 2014 and 2015. However, the Eleventh Circuit voted to rehear the case en banc with 11 judges. They heard the en banc oral argument in June 2016.

On February 16, 2017, in Wollschlaeger v. Governor, State of Florida, the Eleventh Circuit issued a 90-page en banc decision containing two separate majority opinions (one by Judge Jordan, and another by Judge Marcus, both striking down parts of FOPA), two concurring opinions, and a dissenting opinion. Some of the en banc judges joined in both of the majority opinions, although the first majority opinion was deemed the primary voice of the court.

The court noted content-based regulations of speech are presumptively invalid, and some parts of FOPA regulated speech on the basis of content, restricting and providing disciplinary sanctions for speech by doctors and medical professionals on the subject of firearm ownership.

The primary majority opinion struck down the record-keeping, inquiry, and anti-harassment provisions, holding them unconstitutional under the freedom of speech clause of the First Amendment and the concept of liberty under the due process clause of the Fourteenth Amendment which embraces the right of free speech. The court noted that “there is no actual conflict between the First Amendment rights of doctors and medical professionals and the Second Amendment rights of patients that justifies FOPA’s speaker-focused and content-based restrictions on speech.” (Id. at *29-30.) That majority opinion also held that, “even if there were some possible conflict” between the First Amendment rights of doctors and the Second Amendment rights of patients, the record-keeping, inquiry, and anti-harassment provisions “do not advance the legislative goals in a permissible way.” (Id. at *30.)

However, the court upheld the anti-discrimination provision, interpreting it as not facially implicating the spoken or written word. Thus, “we can uphold FOPA’s anti-discrimination provision by construing it to apply to non-expressive conduct such as failing to return messages, charging more for the same services, declining reasonable appointment times, not providing test results on a timely basis, or delaying treatment because a patient (or a parent of a patient) owns firearms. When § 790.338(5) is limited in this way, there is no First Amendment problem.”

The first majority opinion concluded: “The record-keeping, inquiry, and anti-harassment provisions of FOPA violate the First Amendment, but the anti-discrimination provision, as construed, does not. The district court’s judgment is affirmed in part and reversed in part, and the case is remanded so that the judgment and permanent injunction can be amended in accordance with this opinion.” (Id. at *43.)

The second majority opinion agreed that the record-keeping, inquiry, and anti-harassment provisions of Florida’s Firearm Owners’ Privacy Act “plainly target core First Amendment speech. Because the State has failed to demonstrate that these provisions are narrowly drawn to directly and materially advance a substantial government interest, they cannot withstand heightened scrutiny.” (Id. at *44.)

The second majority opinion then went further to hold that the anti-harassment provision was invalid for an additional reason: that the ban on “unnecessarily harassing” behavior was unconstitutionally vague. The court asked, How would a physician know if he or she is “unnecessarily harassing a patient about firearm ownership” as stated in section 790.338(6)? Considering the basic principle of due process that a law is void for vagueness if its prohibitions are not clearly defined, the opinion pointed out, “How is a doctor to know when his advice has become ‘unnecessarily’ harassing,” or “how is a doctor to predict his patients’ individual tolerances for hearing firearm-safety advice?” (Id. at *49-50.) The opinion concluded that such ambiguity or vagueness is inconsistent with the First Amendment.

The Eleventh Circuit’s en banc decision in Wollschlaeger protects patients from discrimination based on gun ownership, while also protecting the rights of doctors to comply with the standard of care that encourages doctors to ask questions about firearms and other potential safety hazards. The en banc decision could mark the end of the case, or the State could seek review by the U.S. Supreme Court.

This case illustrates some of the issues that appellate lawyers are adept at handling. Several attorneys at The Law Offices of Robin Bresky have argued cases before the U.S. Court of Appeals for the Eleventh Circuit, and one of those attorneys filed a brief in a First Amendment case in the U.S. Supreme Court. The Law Offices of Robin Bresky is available to handle or assist with state and federal appeals in South Florida, all of Florida, and beyond.

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